Fears that VA Termination Bill Could Be Unconstitutional

Lawyers and advocates for employees at the U.S. Department of Veterans Affairs are arguing that congressional efforts to streamline the process by which underperforming managers can be disciplined or terminated will not withstand legal challenges, Stars and Stripes reported.

Critics say legislation to reform the VA now making its way through Congress is being adopted in the heat of the moment and may be unconstitutional. They cite a 1985 U.S. Supreme Court case which held that the pay of civil servants cannot be withheld without due process.

A House proposal championed by Rep. Jeff Miller, R-Fla., would allow VA managers to be promptly terminated and restrict the time they have to launch an appeal. A Senate bill backed by Sen. John McCain, R-Ariz., and by Vermont independent Sen. Bernie Sanders would severely limit how much time terminated managers have to appeal and would freeze their pay with immediate effect.

Congress is working to reconcile the bills into one VA reform package.

Presently, managers generally have 30 days to react upon being notified that they will be terminated. They continue to draw a paycheck during the appeals process.

Attorneys who represent federal employees say that backlogs, bureaucracy, and even finding proper legal representation, make it unrealistic to think that a fired worker could file for a fair hearing in as little as seven days, as the McCain-Sanders bill would mandate.

The Senior Executives Association, an advocacy group for federal managers, said it opposed the pending bills. Attorney Debra Roth said that in lobbying against the bill she had pointed to constitutional issues with the legislation.

Lawmakers discounted legal or constitutional deficiencies in their bills. A McCain spokesman said there was no constitutional defect in the Senate bill. Managers would have time to appeal dismissals and could receive back pay in the event the Merit System Protection Board determined the termination was unwarranted.

The federal Office of Special Counsel and the Equal Employment Opportunity Commission also offered recourse if managers felt they had been forced out without cause or due to discrimination, the McCain spokesman pointed out.

Miller, who chairs the House Committee on Veterans' Affairs, said the critics were motivated by a desire to preserve the status quo. "I suspect those who are fighting against our efforts to increase accountability at the VA will have about as much support in a court of law as they did in the court of public opinion," he told Stars and Stripes.